ZGODA POZWANEGO NA COFNIĘCIE POZWU W POSTĘPOWANIU CYWILNYM – UWAGI DE LEGE LATA I DE LEGE FERENDA

The principle of disposal, i.e. of a possibility of managing a subject of a legal dispute has an important meaning in a civil procedure. However, when concerning a claim, manifesting among others in a possibility of a resignation from the further process, it should be limited because of necessity of the defence of interests of defendant. An automatic acceptance of the thesis that a resignation from a suit against somebody does not bring about any negative legal effects for defendant – is incorrect. In the present legislature a need of the defence of interests of defendant is often disregarded. It is assumed that a defendant is satisfied by a possibility of ending the legal dispute as a result of making the decision of the discontinuance of the action. Although this observation is accurate, it cannot be also excluded such situations in which a defendant will care about a definitive and conclusive setting a dispute, being at the same time unfitted with legal instruments that could him get in. Strengthening the position of a subject who is involved, and regardless of his will engaged, into a civil procedure, however, should not violate a fundamental assumption that a plaintiff is a holder of an action. Both parties, in the indispensable range, should be provided with a possibility of managing both respective actions and the whole course of a civil procedure.